When Asari Dokunbo, in that popular interview said, “you think say you dey wise abi“, little did we know that such a comical statement also applies to legal transactions. More often than not, some Nigerians tend to outsmart each other by selling or transferring the right in a property to a third party when such a matter is still before the Court. To avoid situations like this, the doctrine of Lis Pendens came into effect.
Lis pendis is derived from two Latin words. Lis which means suit and Pendens which means continuing. Put together, the doctrine means a pending or continuing lawsuit. The principle of Lis Pendens is derived from the Latin Maxim lis pendente lite nihil innovetur which means nothing should change during the pendency of an action.
The doctrine, as a matter of policy, precludes a plaintiff from selling land in dispute when he knows that there is a dispute in court over the ownership of the land. The rationale behind this doctrine is to prevent either party to the pending suit to transfer the right in the property to a third party. It evolved to prevent one party from fraudulently seeking to overreach the decision of a court granting title to the opposing party on the basis that he had divested himself of the title before the decision of the court was reached.
In Trimskay Nigeria LTD v Bankole-Oki, (2015) LPELR-CA/L/739/2011, the Court held that: The doctrine of Lis pendis affects a purchaser, who buys property the subject matter of litigation during the pendency of such litigation, not because the purchaser is caught by the equitable doctrine of notice but because the Law does not allow the Litigant parties, and give them pending the litigation, rights in the property in dispute so as to prejudice the other party.
It is pertinent to state that the doctrine of Lis Pendis applies predominantly in the sale or conveyance of land. This is further given judicial approval in Combined Trade Ltd. v. A.S.T.B. Ltd [1995] 6 NWLR, where the Court held that “the doctrine of lis pendens does not apply to every suit. It applies only to a suit in which the object is to recover or assert title to a specific property which must be real property. The doctrine has no application to personal property.”
As held in Bua v Dauda [2003] 13 NWLR, for a plaintiff to successfully rely on this doctrine, he must prove the following requirements concurrently:
i. Pending suit in respect of the property;
ii. Action or the lis was in respect of real property;
iii. Object of the action was to recover or assert title to a specific real property;
iv. Party concerned was aware or ought to be aware of the pending suit.
Also, the doctrine can be seen as an extension to the ‘caveat emptor’ (buyer beware) rule as the doctrine will operate whether or not the purchaser had notice of such existing legal dispute over the title to the property. In Bua v Duada(Supra), the Court held that: “in the doctrine of lis pendens, the lack of knowledge on the part of the purchaser pendente lite of the pendency of a suit on the property does not matter, but in a case where the purchaser was aware of the action before he bought, his legal title would be affected not by reason of their being lis pendens, but by reason of the purchaser having notice of the claim.”
However, the doctrine does not operate to defeat a title to property that had vested before the commencement of litigation over title to the property, nor does it operate to nullify the sale of property that is the subject matter of litigation. It only operates to make title to property acquired during the pendency of a suit to be subject to the judicial outcome of the suit.
Putting it in a perspective, if Mr. A had sold the land to Mr. C before Mr. B brought an action. This doctrine would not apply. Also, the transaction between Mr. A and C is not void. The purported sale was transferred to Mr. C would only be voidable pending the decision of the Court.
Hence, if a purchaser chooses to purchase a property, subject of litigation, from one of the litigants during the pendency of the litigation, he does so at his own risk and if it turns out that the person from whom he bought has no title or was adjudged at the end of the pending action not to be the owner, he takes as he finds it. Osidele v Sokunbi (2012) 15 NWLR 477.
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